Government leaves Acas to fix fire and rehire. Its just-released guidance will be ignored by bad employers

It is emblematic of the current administration’s approach to workplace issues that its response to an epidemic of fire and rehire tactics by employers has been to outsource the issue to Acas.

The Advisory, Conciliation and Arbitration Service has just released what it calls “advice to help employers avoid fire and rehire practices” at the request of the government. It follows the publication of the result of a fact-finding exercise back in June.

Now Acas is an admirable organisation that does fine work. But it isn’t hard to see the problem with its headline right from the outset. Companies oughtn’t to need “advice to avoid fire and rehire practices”. They simply shouldn’t do it.

As part of its guidance Acas goes on to say: “The practice of fire and rehire is an extreme step that can damage staff morale, productivity, working relations and can also lead to industrial action.”

And, well, shouldn’t that also be obvious?

The issue can cause damage beyond the workplace. Consumers are starting to notice it too.

Community, the union, is currently fighting Clarks, the shoe maker, over its attempt to impose new contracts, which has led to accusations of fire and rehire and industrial action.

Community recently commissioned Survation to do some polling on consumer responses.

Its survey, conducted online among a sample of 1,030 consumers aged 18 and above, found that 50 per cent were less likely to shop with the company after the situation had been outlined, rising to 56 per cent amongst existing Clarks customers.

“Consumers are voting with their feet and showing Clarks that they do not want to shop with a business who treats their employees in this way,” says the union.

“Fire and hire is wrong. It is a practice that shames businesses, erodes workers’ pay and livelihoods and is disliked across the political spectrum.”

For its part, Clarks, which was rescued by a Hong Kong-based private equity firm after the pandemic did its worst, says it has made concessions including offering a “buffer period” to protect those affected by pay cuts. It says that it wants talks and is willing to listen to proposals. It would probably argue that it has therefore complied with the guidance.

Accusations and acrimony inevitably fly in a dispute like this. However, it should be noted that strikes are quite rare in the modern British workplace. You have to make workers extremely unhappy for them to take that step. And the legal hoops unions have to jump through before getting to that stage are considerable.

Back to the guidance. The GMB, another union that has had issues with fire and rehire, notably fighting a bitter battle with British Gas over its new contracts, says that while the Acas guidance is “helpful” it will be “ignored by bad employers and doesn’t change the fact the government has failed workers by failing to legislate against this insidious practice”.

That rather sums up the problem. The guidance urges companies considering contract changes to “fully consult with all affected staff and their representatives in a genuine and meaningful way”, warning that they could face legal consequences from staff if they don’t.

But, as the GMB notes, good employers aren’t likely to get themselves in the position of needing it in the first place while the bad ones will simply ignore it and press on.

Both unions would like to see legislation to curb the practice. Even Boris Johnson has criticised it. But as for doing something about it, well, the government’s actions have spoken louder than the PM’s words.

It could have allowed parliamentary time for a private members bill designed to address the issue, which was put forward by Labour’s Barry Gardiner. Instead, business minister Paul Scully talked it out, leaving us with the Acas guidance, which does rather amount to it saying “it’d be nice if employers would play nice”.

Meanwhile, the employment bill that has repeatedly been promised is still to materialise.

Unions had best gird their loins. They will likely have to engage in many more battles before it finally emerges, if it ever does. Sadly, the Acas guidance isn’t going to change that.